179 Wis. 243 | Wis. | 1923
Petitioner made application to the building inspector of the city of Milwaukee for a permit to make certain additions to and enlargements of a building owned by him and located in said city, which building is devoted to the purposes of a dairy products plant. The building inspector denied the permit for the reason that a so-called zoning ordinance in the city of Milwaukee, passed by the common council pursuant to the provisions of sub. (5) and (6) of Sec. 62.23, Stats., prohibits any enlargements of the building. Petitioner, claiming the zoning ordinance to be unconstitutional, appealed from the decision of the building inspector to a pretended board of appeals, by whom the decision of the building inspector was sustained. He then sued out a writ of certiorari in 'the circuit court for Milwaukee county, addressed to said board of appeals, for the purpose of reviewing its action in the premises. The board of appeals made return to the writ, from which it appears that the board sustained the action of the building inspector because it considered the proposed alteration of the building to be in contravention of the said so-called zoning ordinance. The lower court disposed of the case on the theory that the relator, having taken this appeal from the refusal of the building inspector to grant the permit, to the board of appeals, a body comprehended within the legislative plan authorizing cities to adopt zoning ordinances, waived his right to contest the constitutionality of the law, upon the authority of Pera v. Shorewood, 176 Wis. 261, 186 N. W. 623, and judgment was rendered quashing the writ.
We regret that we are unable to consider the merits involved in this controversy. We have concluded that the court has no jurisdiction of the proceeding for the reason that the so-called board of appeals to whom the writ of . certiorari was addressed had no legal existence at the time of the issuance or service of the writ.
Sub. (5) and (6) of sec. 62.23, Stats., confer upon cities
“The council may by resolution establish a board of appeals to consist of five members appointed by the mayor for terms of three years without compensation, one of whom shall be an architect or structural engineer of not less than ten years’ practical experience.”
It will thus be seen that while the first act, ch. 557, published July 19th, created a board of appeals, which was appointed by the mayor July 30th, the latter act, ch. 590, published .August 9th, revised the first act so as to authorize the common council to establish a board of appeals by resolution. The cofnmon council never adopted a resolution establishing a board of appeals. It is apparent that the two acts are in conflict and that the latter act repealed the former. After the publication of ch. 590 there was not a board of appeals in existence in the city of Milwaukee and could not be until the common council thereafter adopted a resolution establishing the same.
At the time bill 595 S was introduced bill 471 A had been concurred in by both houses of the legislature, and, while the approval of the governor and its publication was necessary before it became a law, we see no reason why the legislature could not assume the favorable action of the governor thereon and its ultimate publication, which latter proceeding was imperative and rested in the discretion of no one. If bill 471 A had not become a law, of course there would have been nothing for bill 595 S to operate on so far as it constituted an amendment of the provisions of bill 471 A. In such case, so far as it assumed to amend the provisions of bill 471 A, it would be futile legislation. However, when it finally did become a law it found bill 471 A enacted into ch. 557, and, as it was a later act than ch. 557, it must be taken as the last expression of the legislature on the subject, and it operated to supersede all matter in ch. 557 in conflict with the provisions of bill 595 S, which became ch. 590 of the Laws of 1921. It has been held that an amendment that is introduced prior to the approval of an act but passed subsequent to its publication is valid. Mutual Ben., L. Ins. Co. v. Winne, 20 Mont. 20, 49 Pac. 446; 1 Lewis’ Sutherland, Stat. Constr. (2d ed.) p. 452.
In what has been said, the provision of ch. 590' under consideration has been dealt with as though it was a mere
The repeal of the act establishing the board of appeals abolished the office. The pretended board of appeals to which the writ herein was issued can point to no legal authority for its existence. Its acts amount to no more and are no more subject to review by a court pursuant to a writ of certiorari than are those of any other five citizens of the city of Milwaukee. The writ of certiorari issued out of the circuit court to this pretended board brought'no juridical controversy before the court. There was nothing before the circuit court which it might judicially consider, and it follows that there is nothing before this court for our consideration. While the writ of certiorari was properly quashed, though upon erroneous grounds, the judgment should be affirmed.
We appreciate the fact that there is an increasing public interest in the constitutionality of so-called zoning ordinances, and we regret that we are unable to pass upon that very important question at this time. In view of the importance of the question involved, there will be a disposition here, and we trust in the lower court as well, to speed a determination thereof should relator see fit to test his rights in a proper action.
By the Court. — Judgment affirmed.